Get ready for the new illegal working regime

The expanded illegal working regime brings new categories of working arrangements into scope for right to work checks and introduces extended liability provisions. If you are responsible for right to work compliance at your business, you may need to put resources in place over the summer to be able to operationalise expanded checking processes.

In our recent webinar, we unpacked the changes and shared practical tips to help businesses get ready for the 1 October 2026 implementation date. For more information, read our insight on what you can be doing to prepare and our summary of the recently published draft Employer's guide to right to work checks.

This Q&A pulls together frequently asked questions from the webinar. The information provided is correct at 31 July 2026. It provides general guidance only: expert advice should be sought in relation to particular circumstances.

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General

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Right to Work Digital Verification Service Provider (RtW DVSP)

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4. Can an employer use a DVSP as part of a right to work check on someone with a share code?

A RtW DVSP can’t complete a compliant online right to work check on a share code, although in practice some offer this service.

The draft Employer's guide to right to work checks states on page 23 that ‘the Home Office does not currently provide support to or endorse the use of technology for the purposes of carrying out online checks’.

However, from 1 October 2026, a RtW DVSP will be allowed to complete the ‘imposter check’ aspect of an online right to work check only (see page 25 of the draft Employer's guide to right to work checks).

5. Can a RTW DVSP now conduct the imposter check on an employer’s behalf? The new draft Employer's guide to right to work checks suggests they can.

Yes, there are now three ways to carry out the imposter check:

In person – conducted by the employer
Video call – conducted by the employer
Using facial recognition technology – conducted by a RtW DVSP

Facial recognition technology offered by RtW DVSPs may also be used for ongoing identify verification for work arrangements that fall under the extended illegal working regime.

If you use a DVSP or plan to use one in the future, you should check it’s registered to provide RtW services. Also, not all RtW DVSPs offer the full range of allowed RtW services (e.g. ability to check expired British/Irish passports and/or holder services for ongoing identity verification), so check that your proposed provider offers what you need.

6. We use a pre-employment screening provider and they use a IDSP who are on the register. The right to work report for a new starter is branded for the screening provider so it does not state the name of the IDSP. Will we still have statutory excuse as the employer for the new starter in this case?

Currently, the DVSP output for a digital right to work check must comply with what the current Employer’s guide to right to work checks states it must contain in Annex C. It requires the output to name the DVSP, in line with the name appearing on its certificate.

A RtW DVSP output issued for a digital right to work check from 1 October 2026 must comply with the requirements stated in the draft Employer's guide to right to work checks on pages 31 to 32. Among other things, it requires the output to contain:

Confirmation of RtW DVSP registration (this must either be a ‘yes’ response, or the RtW DVSP’s registration details or Trustmark);
Confirmation the RtW DVSP is conducting checks per the supplementary code for digital right to work checks;
The date of the identity check; and
The name of the RtW DVSP.

(An identity service provider (IDSP) is a provider of identity verification services using identity verification technology (IDVT). The Home Office now refers to IDSPs as ‘Digital Verification Services (DVS)’. The draft employer’s guide confirms a further name change to ‘Right to Work Digital Verification Services Provider (RtW DVSP)).

7. Are individuals undertaking work experience placements (for example, Year 10 and Year 12 school placements) also required to undergo right to work checks?

If the work experience arrangement meets the definition in the government’s guidance, where:

The aim is for the work experience participant to spend time with your business and learn directly; about working life and the working environment;
The duties include shadowing and observation only; and
It’s unpaid.

It probably won’t be an employment arrangement. It follows that genuine work experience would not require a right to work check.

However, if a participant performs tasks beyond mere shadowing and observation, the arrangement will potentially risk falling into an employment or worker arrangement. If that is the case, a compliant right to work check would be required before the work experience starts, to obtain a statutory excuse against illegal working.

Working arrangements

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8. We have a sponsorship licence with one employee being sponsored. We don’t have any sponsorship issues regarding our licence. Are we responsible for completing checks on non-employee sponsored workers?

Sponsor licence holders must complete a compliant right to work check for all sponsored workers. This is a sponsorship record keeping duty in line with the requirements of the sponsor guidance, appendix D applies regardless of whether the arrangement falls within scope of the right to work scheme.

9. Would the expanded scheme apply to postgraduate external examiners at universities, who are currently considered as self-employed by HMRC?

The draft Employer’s guide to right to work checks states that the Home Office won’t rely on the label applied to the working arrangement and they’ll examine the nature of the arrangement, including how it’s supplied and performed in practice.

If an examiner is personally engaged by the university to carry out work or services and the arrangement falls within a worker’s contract or they’re an individual sub-contractor, the expanded scheme will require the university to perform a right to work check for engagements commencing on or after 1 October 2026.

If, by contrast, the examiner is genuinely operating an independent business and the university is merely purchasing services from that business, or the contract is with the examiner’s company in a business-to-business services arrangement, the draft Home Office guidance and draft code indicate that the engagement is not within scope of the expanded illegal working regime.

10. If we engage non-employees via a third party, do we need to conduct right to work checks, particularly with a transitional contractor workforce? We have a contract with the third party, not with the contractors.

In the scenario described, you’ll need to determine if liability could be extended to your business. You can do this by examining the contractual arrangements in place.

If the work being performed is for your business and your business is the end user of the services – liability does not extend
If your business is providing onward services to a third party as part of a contractual chain – liability extends

If the contractual arrangements are in scope, your business will need to comply with the prescribed requirements. One of the requirements includes performing identity verification checks on those who work for you. You will also need to have specific written terms in place with the third-party company - see page 49 to 51 of the draft employer’s guide to right to work checks.

11. Is it right that a window cleaner engaged directly by a company, rather than through a subcontracting arrangement, is not in scope of this scheme?

Provided the window cleaner is genuinely self-employed, they won’t fall under the definition scope of the Right to Work Scheme. The draft code states the exception for self-employed individuals or businesses as follows:

Individuals who are operating in business on their own account, trading in their own name or as part of their own business, who contract directly with clients or customers for the provision of work or services, are not in scope of the Scheme. This includes arrangements where services are provided directly to members of the public or under traditional business-to-business contracts for the supply of services, where the arrangement is for the purchase of a service rather than the employment of an individual to carry out work or services.

This does not include individuals who obtain work through an intermediary, platform, or similar arrangement where the individual is not operating an independent business in their own right.

12. Would independent non-executive directors be in scope? They are not employees and are typically engaged under appointment letters. However, their fees are processed through payroll and are subject to income tax and national insurance. They’re considered employees for tax purposes only.

A pure office-holder appointment with no employment contract and no relevant personal work or services contract is not within scope. However, a non-executive director appointment that in substance requires the individual personally to perform work or services for the company and who is paid a fee may fall within the definition of a worker’s contract. The draft Employer's guide to right to work checks and draft Code of practice on preventing illegal working are currently silent on this type of engagement and we’ve queried it with the Home Office.

13. When a business to Personal Services Company (PSC) or business to sole trader engagement has all the indicators of self-employment but is dependent on the personal services of a named individual, does the 'personal service' element bring them in scope of the scheme?

Genuine self-employment is not within scope, see question 11.

If a self-employed individual trades under the name of a Personal Services Company but continues to operate as an independent business in their own right, they’ll still fall out of scope. It’s when an individual obtains work through an intermediary or where they’re not operating as an independent business in their own right, that they fall in scope.

One issue not addressed in the guidance documents is whether a PSC could be liable for an illegal working civil penalty if its employee doesn’t have the right to work. This would be in addition to the individual being personally liable for the criminal offence of illegal working.

14. In an agency-supplied arrangement, can I request confirmation of any background checks carried out, together with evidence of the workers' right to work?

You’re using an agency to hire workers and let’s say those workers are providing services to help you fulfil a contract with a third party.

In this scenario, the contractual arrangements are within scope of the extended liability provisions. Although you aren’t directly engaging the workers, you could be liable to a civil penalty for any individuals who carry out work or services through the contractual chain if they are found to be working illegally. You’ll need to comply with the prescribed requirements to obtain a statutory excuse.

The draft employer’s guide encourages employers and businesses to consider their recruitment and onboarding processes so that they can assess how extended liability may apply in contractual arrangements. It’s not clear how the regime interacts with other legal requirements e.g. data protection law. This is something we’re exploring with the Home Office.

15. If we engage freelancers through a third-party platform, will that platform be responsible for managing right to work checks any potential substitutes? The platform already manage payments, contracts, timesheets etc.

Assuming the freelancers are individual subcontractors, the third-party platform becomes their direct employer under the expanded illegal working regime. If the third-party platform allows their workers to substitute, they’ll need to implement prescribed requirements. This will include substitution controls, which among other things, will require the third-party platform to perform a right to work check on the individual subcontractor and on any substitute.

If you’re engaging the individual subcontractors for your own operations, and you’re not responsible for providing those services onwards to another party, you won’t be subject to the extended liability provisions.

16. Currently we carry out RTW checks for all employees and workers, both via our background screening provider and in-person physical checks. In most cases, for UK and Irish individuals, is the physical in-person check no longer required with the online check? How can we ensure that the online check is compliant?

All checks require the employer to carry out an imposter check. See question 5 for more information.

Procedural

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17. In a chain - where business A contracts to provide work or services, and engages with business C to provide or arrange for the delivery of that work, and C engages individual B to carry it out - do you have any guidance about how often A must audit C to ensure RTW compliance?

This question relates to how contractual terms and conditions (written statement) work in practice. The draft employer’s guide explains how to establish a statutory excuse against extended liability by complying with prescribed requirements.

Completing an audit is just one example of how to comply and other forms of evidence may also be acceptable. See page 51 of the draft employer’s guide for a non-exhaustive list. The guidance states:

What evidence is appropriate will also depend upon the nature of the contractual arrangements, the risk of illegal working or non-compliance with right to work checks arising from those arrangements and the size and complexity of the contractual chain.

You must consider if an audit is the most appropriate way to meet the prescribed requirement. You’ll need to assess the risk and align the frequency of audits in line with that.

18. How would we know if someone was substituting? Are we protected if we state how this should be communicated in T&C's?

Substitution controls and identity verification should be in place before work commences. If you discover that a substitution has happened after work has commenced, you could be liable through extended liability for an illegal working civil penalty (see further comment on liability below).

Including limits on substitution in your contracts is a sensible starting point, but this alone wouldn’t give you a statutory excuse if it later transpired that a substitution had happened and that substitute didn’t have the right to work.

Be aware that the guidance is silent on whether extended liability will be applied to existing contracts, or only contracts established on or after 1 October 2026 (it is clear in the draft Code of practice on preventing illegal working that civil penalties will only be imposed for those employed on or after 1 October 2026 under a worker's contract, as an individual subcontractor or via an online matching service).

It’s sensible to review existing contracts and bring them up to date now so that they account for the implementation of the expanded illegal working regime from 1 October 2026.

19. Do we need to amend contracts with current agencies?

It’s sensible to review existing contracts and bring them up to date now so that they account for the implementation of the expanded illegal working regime from 1 October 2026.

20. Where the business has checked and is definitely not in scope of extended liability because it is an end user (no further chain), would you recommend the end user still has contractual terms in place to contractually ensure compliance e.g. with employment agencies and contractor businesses?

If you are purchasing services for your own use then you are not in scope of the extended liability and these provisions will not apply. You would need to be confident you are the end user. The Home Office will look behind the arrangements as they won’t rely on the label applied to the working arrangement and they’ll examine the nature of the arrangement.

If you want to include terms in the contracts to be cautious where you are the end user then this is something that you could consider but to give you a statutory excuse against the civil penalty if it transpired you were deemed to be caught by the extended liability provisions, it would need to meet the prescribed requirements. Having indemnities and warranties in the contract with the other party that are not compliant with the prescribed requirements would not give you a statutory excuse but may contractually give you recourse against the other party if you received a civil penalty.

21. Do direct contractors fall into scope e.g. one business engaging directly with one self-employed contractor to work on a specific take/workload for that same business.

See question 11 on genuine self-employment and business to business engagements.

22. How often should we perform right to work checks on employees?

Where you are the employer and remember from 1 October 2026 this includes wider work arrangements, an initial check must be performed before work starts. A repeat check is required if the worker has time-limited immigration permission and you intend to continue employment. You would need to complete a repeat check before their current permission expires. You would need to conduct a compliant right to work check following one of the approved methods, conduct the imposter check in the appropriate way and retain the necessary evidence of the check.

If you are not the employer but are caught by the extended liability then, you will need to ensure you follow the prescribed requirements which will depend on the nature of the arrangement and in all cases conduct imposter checks.

23. Are these checks to be conducted just for those workers who fall into scope working for UK business physically based in the UK? What about contractors and an Employer of Record working for a UK company in European/US locations or even Asia?

The expanded illegal working regime applies to work carried out in the United Kingdom. If a worker is physically based outside the UK and does not carry out work in the UK, the right to work check requirements under the expanded regime would not apply to that arrangement.

24. Within the Terms and Conditions slide, does this provision extend to member firms that provide workers through a business to business arrangement where the supplying firm is located outside the UK, for example in India?

See question 23.

Implementation

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Authors

Andrew Osborne

Partner & Head of Immigration, London

Rose Carey

Partner, London